Does a commissioned sales person have fiduciary responsibility to their employer and why? 10 Answers as of September 10, 2015

A former employer filed suit claiming I diverted business away from them to my own company. I filed Chapter 13 to put the automatic stop in place. They have now filed an Adversary claiming that as a creditor they should have dishargability because of fraud as a fiduciary.

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Behren Law Firm
Behren Law Firm | Scott Behren
Does not sound like fraud, but you probably need to have an attorney litigate the adversary proceeding for you to make them go away.
Answer Applies to: Florida
Replied: 9/10/2015
Ronald K. Nims LLC | Ronald K. Nims
Salespeople are generally not fiduciaries. Fiduciary means that you control the assets of another and are required to manage them for the benefit of the owner. Pension fund managers, lawyers are examples of people with fiduciary responsibilities. Salespeople very seldom handle money or goods for their employers, usually they take an order, the employer then sends the goods to the customer and the customer pays the employer directly. Further, the bankruptcy exception only applies to fraud or defalcation. Fraud means you tricked someone into giving you money by lies. Defalcation means you stole money which was entrusted to you. Now, if you told the clients that they were buying widgets from your employer then substituted widgets from another company, that would be fraud but not fraud in a fiduciary capacity.
Answer Applies to: Ohio
Replied: 9/9/2015
Richard B. Jacobson & Associates, LLC | Richard B. Jacobson
That particular exception from discharge has been the subject of a lot of litigation. In general, taking a business opportunity away from one's employer is actionable, and may well be excluded from the discharge. Consult your lawyer, and if you don't have an experienced BR lawyer, you need one now. You may want to explore settling the Adversary. The question of violation of fiduciary responsibility as a basis for exception from discharge has usually been interpreted to mean a violation of duties under an express trust, rather than fiduciary responsibilities in general. But please keep in mind that the actions your former employer is alleging can make you look very bad.
Answer Applies to: Wisconsin
Replied: 9/8/2015
Janet A. Lawson Bankruptcy Attorney
Janet A. Lawson Bankruptcy Attorney | Janet Lawson
Depends on the contract you had with them. You need to get a good lawyer now.
Answer Applies to: California
Replied: 9/8/2015
KEYL ADR Services, LLC | Mark D. Keyl
Yes, you have a fiduciary duty to your employer.
Answer Applies to: Mississippi
Replied: 9/8/2015
    WILLIAM L SANDERS, ATTORNEY AT LAW | William L. Sanders
    I suggest you ask your bankruptcy attorney. If you do not have one, get one. The cost of the attorney is likely less than your liability, if the debt is not discharged. Certain intentional acts are non-dischargeable in bankruptcy. I do not know if yours is or is not.
    Answer Applies to: Georgia
    Replied: 9/8/2015
    GARCIA & GONZALES, P.C.
    GARCIA & GONZALES, P.C. | Richard N. Gonzales
    The question is too complicated to answer here - I apologize. Adversary proceedings are very involved and not handled by every bankruptcy attorney. You need to meet with an experienced bankruptcy lawyer and pay him or her for one hour of their time to review the adversary proceeding with you. Good luck!
    Answer Applies to: Colorado
    Replied: 9/8/2015
    Fox & Fox, S.C. | Richard F. Rice
    Contact a bankruptcy attorney.
    Answer Applies to: Wisconsin
    Replied: 9/8/2015
    Patrick W. Currin, Attorney at Law | Patrick Currin
    Sounds like a tough case for them, but you'll need a trial attorney.
    Answer Applies to: California
    Replied: 9/8/2015
    A Fresh Start
    A Fresh Start | Dorothy G Bunce
    Of course an employee has a fiduciary responsibility to their employer. Otherwise, any employee could double cross their employer, steal any payments coming in to pay for the accounts, sign up their accounts and bad mouth the employer in order to make a fast buck.
    Answer Applies to: Nevada
    Replied: 9/8/2015
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